I United Nations
| Date | 01 December 2003 |
| DOI | 10.1177/016934410302100404 |
| Author | Ineke Boerefijn |
| Published date | 01 December 2003 |
| Subject Matter | Part B: Human Rights News |
I UNITED NATIONS
INEKE BOEREFIJN
1
1. HUMAN RIGHTS COMMITTEE
The Human Rights Committee held its 78
th
session from 14 July – 8 August
2003 in Geneva. It considered reports submitted by El Salvador, Israel,
Portugal and Slovakia.
During its session, the Committee issued a statement in which it deplored
the recent execution in Uzbekistan of six individuals under sentence of
death, whose cases were pending before the Committee. The Committee
reminded the State party of its position that it amounts to a grave breach of
the Optional Protocol to execute an individual whose case was pending
before the Committee, in particular where a request for interim protection
under rule 86 of the Committee’s Rules of Procedure had been issued. The
Committee reiterated its request for interim protection under rule 86 in all
other cases currently pending under the Optional Protocol in respect of
Uzbekistan, and not to execute the persons before the Committee had
concluded its consideration of those cases. It further requested the State
party’s full cooperation in respect of all cases pending before the
Committee.
Communication No. 693/1996, Nam vs Korea, review of admissibility decision of
28 July 2003 (inadmissible under Article 3 of OP)
The author of the communication, a national language teacher in a Seoul
middle school, claimed to be victim of violation of Article 19(2) of the
Covenant because Korean national law prohibited the independent
publication of middle school national language curricular books. The State
party objected against admissibility on the ground of non-exhaustion of
domestic remedies. According to the Committee, the State party had
accepted that no further judicial remedies were available to the author. With
regard to the State party’s contention that administrative remedies
remained available, the Committee considered that, even if such remedies
were theoretically available, the State party had not shown that these
remedies could be effective. Accordingly, the Committee concluded that the
requirements of Article 5(2)(b) OP had been met. The communication was
declared admissible during the Committee’s 72
nd
session.
PART B: HUMAN RIGHTS NEWS
Netherlands Quarterly of Human Rights, Vol. 21/4, 697-761, 2003.
@ Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 697
1
I am much indebted to the assistance provided by Paulo de Tarso Lugon Arantes, intern at
SIM.
698
With regard to the merits, the State party submitted that State authorship
and the system of examination and approval of schoolbooks was intended
not to prohibit the publication of non-governmental books, but to ensure
that books used for educational curricula were of suitable quality.
In the light of the submissions by the parties, the Committee observed
that the communication did not relate to a prohibition of non-govern-
mental publication of textbooks as was originally complained of and found
admissible by the Committee. It stated that the communication related to
the author’s allegation that there was no process of scrutiny in place for the
purpose of submitting non-governmental publications for approval by the
authorities, for their use as school textbooks. While affirming that the right
to write and publish textbooks intended for use at school fell under the
protection of Article 19, the Committee noted that the author claimed that
he was entitled to have the textbook prepared by him scrutinised and
approved/rejected by the authorities for use as textbook in public middle
schools. According to the Committee this claim fell outside the scope of
Article 19. It therefore reversed its prior admissibility decision and declared
the communication inadmissible under Article 3 OP.
One Committee member issued an individual dissenting opinion. In his
view, there was a violation of Article 19(2).
Communication No. 781/1997, Aliev vs Ukraine, views of 7 August 2003 (violation
of Article 14(1) and 14(3)(d))
The author is an Azerbaijani national, at the time of submission of the
communication awaiting execution in Ukraine. He had been involved in a
fight, during which someone was killed. He did not invoke specific
provisions of the Covenant. According to the Committee, the communica-
tion appeared to raise issues under Articles 6, 7 and 10, 14(1), (3)(d), (e),
(g), (5) and 15 of the Covenant.
The Committee decided not to consider the communication insofar as it
concerned the author’s wife, since there was no indication that the author
had been authorised to act on her behalf and he had not explained whether
or not she could act on her own behalf.
The author alleged that the death penalty had been imposed on him
despite its abolition. He claimed that this constituted a violation of Article 6.
The Committee observed that the abolition of the death penalty took place
after a final decision had been taken in the author’s case. This part of the
communication was therefore inadmissible under Article 2 OP.
With respect to the allegations of ill treatment by the police, the
Committee noted that these allegations had been dealt with by the courts
and were considered to be unfounded. The Committee observed that it was
not for the Committee to evaluate facts and evidence in a particular case and
declared this part of the communication inadmissible under Article 3 OP.
The allegations concerning the denial of a fair trial, tampering with the
author’s case record to conceal procedural errors, the illegal rejection of an
Human Rights News
application for judicial review, and the imposition of a higher penalty than
provided for by law, were declared inadmissible under Article 2 OP.
The communication was declared admissible insofar as it concerned
allegations of violations of Articles 14(1) and (3)(d) and 6.
With respect to the author’s allegations that he did not have the services
of a lawyer during the first five months of detention, the Committee took
into account that the State party had not submitted information on this issue
and the domestic courts had not addressed it, even though the author had
mentioned it. The Committee further took into account the nature of the
case and the questions dealt with during this period, particularly the
interrogation by police officers and the reconstruction of the crime, in
which the author was not invited to participate. It concluded that the author
should have had the possibility of consulting and being represented by a
lawyer, and found that Article 14(1) had been violated.
The author further alleged that the Supreme Court heard his case in his
absence and in the absence of his counsel. The Committee noted that the
State party had not challenged this allegation and had not provided any
reason for this absence. The Committee recalled that legal representation
must be available at all stages of criminal proceedings, particularly in cases in
which the accused incurs capital punishment. It found that the facts before
it disclosed a violation of Article 14(1), as well as a separate violation of
Article 14(3)(d) of the Covenant.
The Committee held that the imposition of a sentence of death upon
conclusion of a trial in which the provisions of the Covenant had not been
respected constituted a violation of Article 6 of the Covenant if no further
appeal against the death sentence was possible. It noted, however, that this
breach was remedied by the commutation of the death sentence into life
imprisonment.
The Committee stated that the author was entitled to an effective
remedy. It held the view that, since the author was not duly represented by a
lawyer during the first months of his arrest and during part of his trial, even
though he risked being sentenced to death, consideration should be given
to his early release.
Communication No. 796/1998, Reece vs Jamaica, views of 14 July 2003 (violation of
Articles 10(1) and 14(3)(c), no violation of Articles 9(1), 14(3)(a), (b), (d), (e) and
(5))
The author of the communication was convicted of murder and sentenced to
death. His sentence was commuted to life imprisonment. He complained to
be the victim of a violation of Articles 7 and 10(1), 9(1), 14(1), (2), (3)(a)-(e).
With respect to the claims concerning Article 14(3)(b) and (e), the
Committee considered that the trial transcript did not disclose that the
author’s lawyer had asked for an adjournment because there had been
insufficient time to prepare the defence. It noted that the State party could
not be held responsible for the lawyer’s conduct, unless it was or should have
I United Nations
Netherlands Quarterly of Human Rights, Vol. 21/4 (2003) 699
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